Whether federal District Court jury instructions and summary judgment decisions must be consistent with Babb v. Wilkie's statutory framework regarding discrimination in federal employment

Federal employees’ rights are determined under statutes which require that “all personnel actions effecting employees or applicants for employment . . . in executive agencies as defined in Title 5 . . . shall be made free from any discrimination . . .” See 42 U.S.C. § 2000e-16(a) (“based on” race , color, religion, sex, or national origin) (emphasis added); 29 U.S.C. § 633a(a) (“based on” age). The langua ge and syntax of these statutes differ from private sector statutes. Babb v. Wilkie, 589 U.S. 399, 409-413 (2020). The questions presented are: Whether federal District Court jury instructions and decisions on motions fo r summary judgment must be consistent with Babb v. Wilkie’s statutory framework and specifically: 1. As to summary judgment whether the “shall be made free from any di scrimination” permits summary judgment of: (a) federal-sector adverse personnel decisions when a combination of sex and age (i.e., older female) are considered in the process of making those decisions; and (b) damages caused by consideration of EEO activity during the process of making adverse personnel actions. 2. In jury instructions, failing to instruct the jury on what constitutes differential treatment and failing to instruct on burden shifting to the defendant under LeSage and Mt. Healthy. ii Subsidiary questions are whether these errors prejudiced the outcome at trial; whether Babb v. Wilkie is applied to federal employee Title VII claims, and whether it bans retaliation in federal employment under 42 U.S.C. § 2000e-16(a). iii PARTIES The petitioner is Noris Babb. The respondent is the Secretary, Department of Veterans Affairs. There are no corporate entities associated with this case. STATEMENT OF RELATED CASES Noris Babb v. Sloan Gibson, Secretary, U.S. Department of Veterans Affairs, 8:14-cv-01732-VMC Noris Babb v. Denis R. McDonough, Secretary, U.S. Department of Veterans Affairs, Case No: 2310383-C, Eleventh Circuit Court of Appeals (2023) Noris Babb v. Denis R. McDonough, Secretary, U.S. Department of Veterans Affairs, 589 U.S. 399 (2020) Noris Babb v. Robert McDonald, Secretary, U.S. Department of Veterans Affairs, Case No: 16-16492FF, Eleventh Circuit Court of Appeals (2016)